Covering you @ in an Electronic World of Discovery

Peter L. Mansmann, Esq.Precise, Inc.September 2009

120,000 emails, 9 months. I recently counted the number of emails I either sent or received in a single day. I was surprised at the number: 67. If you multiply that by a 10 person operation, over the course of a 9 month project, you have a total of over 120,000 emails sent and received during that time period. Add onto this Excel files, electronic schedules, digital photos, drawings, etc… and you have quite a large data set. The construction industry today, like most businesses, has entered an age where a staggering amount of electronic data, files and emails are created during the course of a project. Managing this amount of information can be a challenge in the course of everyday business. If litigation results from the project, this large body of electronic information can create an expensive problem.

A recent change in the Federal Rules governing the exchange of information between parties in a lawsuit has significantly changed how this information is managed and gathered. This new Rule allows the parties involved to request electronic documents, emails and related metadata. Metadata is the information, or properties, related to that electronic file – the data about the data. Take the example of a digital photo. Besides the image, there may be metadata that tells you the date that the photo was taken, the file size of the image, the name of the file, etc.

In the past, when producing information related to a lawsuit, you could just provide a print of that same photo. With the new rules, the exchange of the metadata related to these files can provide a lot more information. What if this file was named “subpar shoring.jpg”? That piece of information can be very revealing. The importance of metadata becomes particularly relevant when trying to sort through a company’s emails.

Companies often do not have good policies in place for managing how their employees compose emails and how those emails are stored. A significant amount of time, and therefore expense, can be spent trying to sort through a company’s servers, desktops, laptops, and other storage media when trying to locate emails and documents related to a litigated project.

Here’s another example: in the initial stages of a lawsuit, we were contracted to collect all of the electronic information related to the project. The company had approximately 15 people working in administrative positions on this particular project. Each person working on this project may have also been working on 4 or 5 other projects simultaneously. The emails for all of these projects were kept in one location without identifying them by project. We had to sort through over 600,000 emails to identify and remove personal emails, privileged emails, spam, and emails related to other projects. This took a team of 10 people approximately 3 months — Not a cheap assignment.

So, what can be done to organize electronic files and emails? There are a few basic steps that can help tremendously, not only for potential litigation but also for internal organization. First, the company should develop a document retention policy. This policy should instruct employees to keep files and emails only as long as necessary, unless the information contained is so unique that it should not be destroyed. This policy should be in writing and strictly enforced.

Second, at the beginning of any project, employees should be instructed to save electronic files to an organized folder structure previously created by management. An example of this is to have a simple folder system for main categories of documents: Drawings, Correspondence, Schedules, Invoices, Billing, etc…. Within each of these folders can be sub-folders that organize the information a step further – by month for example. This “tree” of folders organizes information and allows for easy retrieval by anyone.

Third, emails should ideally be confined to servers that are project-specific. If this is not feasible, employees should be directed to not use company accounts for personal emails. Furthermore, if an employee is working on multiple projects, it’s a good practice to put the project name in the subject line so those emails can be sorted by project name at a later date. Finally, employees should be instructed to be careful of what they write in emails and what they name files. A moment of frustration captured in an email can become a huge issue in a courtroom. The same is true for file names.

As the old saying goes, “an ounce of prevention is a worth a pound of cure,” and this holds true when applied to the management of electronic data. A few simple policies implemented at the beginning of a project can prevent massive expenses of time and money in the face of litigation.